Godwin v. LaTurco

• Decision Date: 30 April 1969
• Citation: 272 Cal.App.2d 475,77 Cal.Rptr. 305
• Parties: Joyce Imajean GODWIN, Plaintiff and Respondent, v. Evelynne Martha LaTURCO and Gloria A. Holtz, Defendants and Appellants. Civ. 25199.
• Court: California Court of Appeals Court of Appeals

Page 305

77 Cal.Rptr. 305

272 Cal.App.2d 475

Joyce Imajean GODWIN, Plaintiff and Respondent, v. Evelynne Martha LaTURCO and Gloria A. Holtz, Defendants and Appellants.

Civ. 25199.

Court of Appeal, First District, Division 3, California.

April 30, 1969.

Rehearing Denied May 29, 1969.

Hearing Denied June 25, 1969.

Leo M. Cook, Ukiah, for appellants.

James F. Kemp, Sonoma, for respondent.

DAVID, Associate Justice, pro tem. ^*

This is an appeal from a judgment awarding damages upon the third jury trial of a personal injury action, arising out of an automobile collision of vehicles other than that driven by appellant LaTurco.

Orr Springs Road joins State Highway 101 from the west, and ends at the junction. Mrs. Evelynne M. LaTurco (formerly Dupont) was driving her Rambler station wagon at 35 to 40 miles per hour, south to north, approaching this intersection. Gloria Holtz, co-owner of the Rambler, rode with her. Mrs. Joyce Imajean Godwin, in her Ford, was driving in the same direction, some 50 to 100 feet behind them.

Mrs. LaTurco testified that about 200 feet from the intersection, she put on her signal indicator, preparatory to a lefthand turn into Orr Springs, Road. She saw a Chevrolet pickup truck approaching on Highway 101 from the opposite direction (north to south) some 600 or 700 feet away, but could not then estimate its speed. Mrs. LaTurco slowed to 20 miles per hour and had made her turn, crossing the center line of the highway, when she realized the truck driven by Bruce Ball was coming fast. Independent witnesses placed her car completely out of the intersection before Ball came skidding through it, and two witnesses placed her car 100 feet through the intersection and stopped, at that time.

There was testimony that Ball was going from 55 to 70 miles per hour, though the posted limit was 45 miles per hour. Ball panicked some 250 feet away from the intersection. The brakes on his truck were defective, and worked only on the right-hand side. He slammed them on. He did not hit appellants' left-turning car. Ball testified that he passed to the rear of appellants' car with at least 6 to 8 feet clearance, but that the brake defect caused him to pull his wheel to the left, swerving his truck across the center line into Godwin's car.

Ball defaulted, and no question arises as to his liability. This appeal is taken from the judgment against the driver and her co-owner of the left-turning car, not involved in the physical collision. The failure of the trial judge, though requested, to give proper instructions, particularly those relative to proximate cause, is assigned as prejudicial error. The respondent contends the instructions given were proper and sufficient. The Supreme Court has approved those requested and refused. (Akins v. County of Sonoma, 67 Cal.2d 185, 200, 60 Cal.Rptr. 499, 430 P.2d 57.)

Himself an ardent critic of ritualistic instructions (The Instruction Ritual, 13 Hastings L.J. 456) the trial judge refused to give BAJI instruction 104, deleted the only reference to proximate causation, and thus in effect determined as a matter of law that the left turn of Mrs. LaTurco was a proximate cause of the collision. He advised the jury:

'Now, thus, in this case you will have to decide whether the collision between the Ball and Godwin vehicles was caused by a failure of Mrs. LaTurco to use ordinary care in making her left turn.'

'Now, in considering whether Mrs. LaTurco was using the care of a person of ordinary carefulness in making her turn, you should keep in mind that it would be a failure to use ordinary care to turn left when a person of ordinary carefulness would foresee that the oncoming driver would be likely to react to the turn in a way which is likely to cause someone injury.'

'I think it important to point out that there can be more than one cause of an accident or of a collision. The question here is whether or not Mrs. LaTurco failed to use ordinary care in making her left turn and whether or not that was a cause, and I am emphasizing that 'a cause' of the collision.'

The trial judge understandably believed that BAJI instruction 104 on proximate cause, standing alone, is loaded with naked abstractions and is not always a ready tool to assist a lay jury. (People v. Hebert, 228 Cal.App.2d 514, 519--520, 39 Cal.Rptr. 539.) Nevertheless, the omission of such an instruction is an elevator giving ready access to the justices upstairs. (Clark v. State of California, 99 Cal.App.2d 616, 619, 222 P.2d 300.) The reason is readily apparent.

In a philosophical sense, any given event has a long sequential ancestry. In a hypothetical case, one might reason that an automobile collision would not have happened if A had not been at the point of collision at 1:30 p.m.; A would not have been there if he had arisen five minutes later that morning; or if he had not run the stop sign 10 miles back; or if he had spent two or more minutes in the gas station two miles back; or if A had not speeded up across an intersection immediately prior to the collision. One can validly say that But for such events, the collision would not have occurred. The 'but for' test, familiar to every law school graduate, defines Actual cause, but not Proximate cause. Whether a cause may be the proximate, effective, or legal cause, demands further characterization; and when some cause is found to be proximate, it still must consist of some negligent act or omission to sustain an award of damages; or to defeat it, in the form of contributory negligence. (Johnson v. Union Furniture Co., 31 Cal.App.2d 234, 237--239, 87 P.2d 917; Azcona v. Tibbs, 190 Cal.App.2d 425, 428, 12 Cal.Rptr. 232.) The jurors need a definition of the ultimate factual conclusions which, if found, either gives the plaintiff a right to recover or the defendant a right of exoneration.

In a collision case, after giving BAJI instruction 104, some jurists have found it helpful to explain some of these legal postulates in substantially this form: 'In determining the issues of proximate cause and negligence, it may be helpful to begin from the collision and work backward. Consider in turn the conduct of each driver, before the event; to discover if there was something he did, or did not do, which if he had done, or had not done, would have avoided the collision. If you find that there was, you have found a Cause. If then you find that cause was a real, effective cause in producing the collision under the instructions just given you, you can determine it was a proximate cause of the collision.

'Your duty does not end at this point. You must further examine this conduct, whether it is an act or omission, which you have found to be a proximate cause, to determine whether or not it was negligent conduct. If the person's conduct in question, in the act or...